You railed against “market fundamentalism”, the very phrase reeks of anti-capitalism.
You still have not backed up the bold leap you made. There was a “loosening” of restrictions. Ok I’ll buy that. What evidence do you have that it was your “market fundamentalism” and not crony capitalism or misplaced faith in government efficiency. Two much simpler explanations for the government mismanagement in this case.
Those explanations are in no way simpler. Actually my explanation is simpler, as it’s easy to show the rise in fundamentalist economics in the law field starting from the 1970s. Robert Bork was one of the biggest proponents.
Also, the term market fundamentalism was coined by a hedge fund manager. Nothing anti-capitalist about it. It is an anti-extremist term.
But we’re here to fight ignorance. I’ll confess: I got nothing - or rather I have no substantiation (to be fair, neither do you). And there’s another factor at work that neither of us have mentioned. There was a rise in public interest lawsuits, also during the 1970s, which coincided with permitting 3rd parties sponsoring lawsuits. Now the sponsors weren’t exactly uninterested: the Sierra Club cares about the environment. But this was the beginning of the weakening of standing to sue.
Ok, with that out of the way, I’ll poke the internet. … Here’s an article on the subject by Keith N. Hylton, Professor of Law and Boston University. Scholarly Commons at Boston University School of Law
[INDENT][INDENT]Third-party financing of litigation is a practice in which a financier underwrites a lawsuit
in exchange for a share of the final judgment. It is a business that appears to be growing.
At least two investment funds exist that are dedicated to financing high-stakes
commercial litigation.1 There are numerous funding sources available for low-stakes
litigation.2
This is an interesting state of affairs because the legal status of third-party funded
litigation is unclear in the U.S. The common law prohibited third-party funding, under
doctrines proscribing maintenance and champerty. Maintenance refers to the financial
participation of a third party in a lawsuit. Champerty is the practice of funding a lawsuit
in exchange for a share of the judgment. At present, the common law prohibitions have
been modified or abolished in a majority of American states.3 Still, even though the law
on maintenance and champerty is now a patchwork quilt, there remain several American
jurisdictions in which champertous agreements are either illegal or unenforceable.4 Only
a handful of states have abolished the doctrines entirely.5
…
This paper examines the economics of third-party financed litigation.6 I explore the
conditions under which a system of third-party financiers and litigators can enhance
social welfare, and the conditions under which it might reduce social welfare. [/INDENT][/INDENT] Blackstone (~1765–1769) took a harsh view on champerty. My brief skim doesn’t tell me the reasons why some states ban champerty, some states have legalized it entirely and others are some are in between.
“Market fundamentalist” is an anti-capitalist smear term. It implies that a laissez-faire position is backed by a religious-like belief instead of science. But hey, if that’s how you want to proceed, no biggie, but it definitely pings my anti-capitalist radar.
I’m still struggling to ascertain a mechanism by which a strong “belief” in markets would lead wise stewards of the government courts to loosen restrictions. How is the market supposed to curb potential abuses here?(besides private law which nobody with power even knows about)
I can clearly see a mechanism by which a strong “belief” in government efficiency leads benevolent stewards of government courts to loosen restrictions. I can also clearly see why crony lawyers would like to loosen restrictions.
Not necessarily, and certainly not originally. The term was coined to describe a particular discipline for making investment decisions - look at the fundamentals (i.e. the stock price, the p/e ratio, the dividend history . . .) and ignore all the bubble-creating talk about new paradigms and golden horizons and the like with which stocks are sometimes spruiked.
Only later, under the influence of terms like religious fundamentalist, Islamic fundamentalist, etc did it come to be used as a pejorative, and the original sense is still current. So in any particular instance of use, you’re going to have to look at context to decide whether the term is being used pejoratively or not.
Maybe. Or maybe he also wanted to destroy Gawker.
Perhaps, but I’m not sure that it does. If the lawyer does things that are not consistent with his fiduciary duty to the client, even if the client wins, I would suspect that the attorney would be placing his license in jeopardy for a grave ethics violation.
As a general proposition, I have a problem saying that someone with lots of money helping someone else bring a lawsuit with merit is something that needs to be stopped. If some liberal billionaire wants to help young, impoverished women fight back against unconstitutional state restrictions on the right to choose, I think that’s a great way for a rich person to spend his money. If that liberal billionaire actually just has an axe to grind against Texas because a state cop beat him up when he was protesting the Vietnam War in Austin many years ago, well, the poor woman he is helping is still probably better off by being able to assert her legal right to access a courtroom.
“Gawker can’t be expected to have an editor stop and consider which celebrity sex tapes are newsworthy” is an awfully weak argument.
One thing I wondered: If someone were to go around financially supporting meritless lawsuits against their enemies, and those lawsuits were determined to be meritless (possibly via some anti-SLAPP law), would the financier possibly be liable for damages? I know that the plaintiff can be. I believe that attorneys cannot be (although they might face some professional sanctions?)
If you think anti-laissez faire is the same as anti-capitalist, you need to recalibrate. All existing capitalist economies are mixed economies. (ETA: Market fundamentalist is intended to draw a parallel with Christian and Islamic fundamentalism to the extent that all 3 are extremist and moreover purist positions. Antithetical to pragmatism. Or such is the implication/implicit accusation.)
I think this is reasonable. Here are some thoughts. 1) My point was speculative: I might simply be wrong. 2) The same sorts of people sympathetic to loosening anti-trust restrictions, also tend to like things like a free market in buying and selling lawsuits. 3) Though to be honest, I’m guessing the actual answer is complicated as I alluded to earlier. 4) Ravenman appears to have more background in this than I do.
Granted the Hogan case was pretty appalling.
Maybe there should be a federal anti-SLAPP law. I don’t think there is: this varies by state.
Ravenman: It’s a concern when any billionaire can run Mother Jones or the National Review out of business via legal harassment. This is essentially what Theil is doing to Gawker. Gawker Media can’t raise funds because (as Salmon understands it) Theil is essentially if implicitly promising to run and endless series of lawsuits against Gawker. Even if they win, the legal fees will kill them. And there are plenty of jurisdictions without anti-SLAPP laws.
Also. Josh Marshall sees this as simpler. Theil has come out of the legal closet as it were now that investors are involved. But during the case he was anonymous. Marshall thinks that’s wrong: juries should know if a case is being bankrolled by a third party. Thiel Apologists Still Having a Hard Time - TPM – Talking Points Memo
The Gawker isn’t Mother Jones or the National Review. If Mother Jones or the National Review acquired and distributed pornography filmed without the consent of the participants and refused to stop, they’d deserve to be destroyed too.
The Gawker is not the victim here, they are the bully you accuse Theil of being. They are the ones who were blatantly violating Hulk Hogan’s right to privacy because they believed they were too big and Hogan too small for Hogan to do anything about it.
I actually don’t disagree with this. Privacy is a real concern.
But it’s also a concern if Mother Jones can be sued into oblivion not for publishing pr0n but for routine First Amendment protected stuff. Mother Jones was sued like that recently. They won. But it cost them and their insurer millions in legal fees. That’s the worry. The worry is that any media organization could be the target of endless bullshit lawsuits in convenient districts for the purposes of overwhelming them with legal bills. A billionaire can do that.
Story: We Were Sued by a Billionaire Political Donor. We Won. Here’s What Happened. – Mother Jones
Also, I need to correct something I claimed upthread. I said Theil was outed by Gawker. Josh Marshall linked to a Huffpo story that says he wasn’t. Gawker Didn't 'Out' Peter Thiel -- Nor Did It Wrong Him in Any Way | HuffPost Voices Gawker did note that Theil wishes women couldn’t vote (sort of), but that’s protected speech.
Except that in this case, the lawsuit seems pretty clearly meritorious. If Mother Jones or National Review commit a series of pretty egregious torts against private individuals, then perhaps they should be run out of business. If they have not, then I oppose harassing lawsuits against Mother Jones and the National Review because the lawsuits would have no merit.
Why so many people in this thread focus on “should rich people be able to hire as many lawyers as they want?” as the center of the ethical problem here, and not “are the lawsuits meritorious or not?” still mystifies me.
I can see a case that a judge should know about it, but juries should not. Juries are there to judge the facts of the case, not be arbiters of whether someone else should be paying lawyers’ bills. If the jury decided that Hulk Hogan did not deserve compensation on the basis that someone else paid his lawyer’s bills, that would not be a fair outcome based on the wrong that was done to the Hulkster.
To sum up my position: call me back when Trump sues the Washington Post into oblivion for printing the truth about his lies. about donating to veterans groups.
Sued into oblivion? Gawker litigated this case to the point where Hogan had to incur $10 million in legal fees in order to vindicate a valid claim. Gawker is a corporation run by a rich man who tried to stop an individual from suing them by overwhelming him with legal fees, and it’s only by happenstance that Hogan had sufficient resources through Thiel to resist. Gawker is the bully here, not the victim.
Telling the jury about arrangements like Hogan’s is flat-out unjust. No one should be in favor of juries rendering verdicts based on who is spending how much money on each side or what each party’s politics are.
:dubious: I agreed he probably wanted to destroy Gawker. The issue is whether he would have settled without having backing.
Are you joking? The chances of a lawyer being disbarred for winning a case for less than he have theoretically could have won are zero. It’s pretty hard to have a lawyer disbarred. More importantly, if you want some evidence that the lawyer was not
But we don’t get to decide what has merit. Only the courts do, and it often after lots of expensive litigation. That’s the issue. We have no idea how many unsuccessful lawsuits Thiel has bankrolled. We know it was more than one.
I think few people are really crying for Gawker or Nick Denton specifically. What they have done over the years, including what they did to Thiel, are indefensible. No doubt they are bad guys. However, that doesn’t make what Thiel did right. The point is that a jury trial should be a last resort generally speaking, but that ideal is subverted when one side basically has nothing to lose since they are being bankrolled by bottomless, vindictive pockets.
There is a huge difference in a billionaire fighting the state or lobbying for legislation, and a billionaire fighting a smaller company or an individual by proxy. The proxy part is important because it makes it nearly impossible to stop or to even know it’s happening.
Your thought dropped off there, but if you actually believe (lacking evidence of course) that Theil has bankrolled other lawsuits that lost, then somewhere along the line are lawyers that both lost and betrayed their fiduciary duty.
So let me get this straight: someone videotapes you having sex without your consent, it’s released to the public for no apparent reason than titiliation, and you literally have no idea whether you think you have a meritorious claim until the jury issues its decision? And you’re totally incapable of distinguishing between whether a lawsuit is generally meritorious or completely frivolous until the entire legal system plays out?
Would your confusion be eased if I started using the words “non-frivolous” instead of meritorious?
I don’t think a jury trial is a last resort. The Constitution gives people a right to jury trials in civil cases. Do you think the Seventh Amendment is somehow subordinate to the First Amendment?
I don’t see a “huge difference” if the case is non-frivolous. If the cases the billionaire is bankrolling are frivolous, I’m given to understand that there can be penalties for wasting the court’s resources (to say nothing about the resources of the defendants).
Nor do we know how many potentially meritorious litigants were wholly forestalled from bringing claims against Gawker (or, for that matter, the billionaire-owned NYT, WaPo, or WSJ) because they knew that those corporations would force them to spend millions in legal fees that they didn’t have. What Thiel provided was a rare level playing field.
What are you talking about? My point was that disbarring a lawyer is exceptionally hard, and such a thing is almost certainly not going to occur because you arguably betrayed your fiduciary duty by settling a lawsuit.
As I cited, but for the existence of a benefactor, not settling and dropping certain claims as Hogan did would typically not be in his best financial interest. That’s essentially how Thiel was outed. The strange behavior of Hogan and his counsel made it apparent that they were not interested in acting in their best financial interests given the information they had at the time.
That is not the issue before the court. Gawker didn’t tape Hogan. The issue is whether releasing a small snippet of a grainy tape is in invasion of privacy when it concerns a public figure. As a matter of law, this is NOT actually a slam dunk case. Not only because the existence of the tape was known about, and because Hogan himself spoke about it before the Gawker article came out, but also because it’s hard to argue just the mere ability of someone to see a small part of the tape invaded his privacy.
The reason this is not so clear cut is because there is a decent argument that his privacy was not invaded by Gawker for many of the reasons stated above. Further, people worry that this will prevent others from reporting similar claims. For example, the pictures Anthong Weiner sent, the Marion Berry tapes, or the Rob Ford tape.
If people could reliably agree on whether cases were frivolous or meritorious, there would be almost no need for civil courts. Even putting aside this case, do you really trust a billionaire seeking revenge on an individual or company to ONLY bankroll winning cases? Even if he went in with that desire (which I believe he did), NO ONE can accomplish that. If you could, any billionaire would make billions more just financing lawsuits.
It’s your confusion at issue here. You can characterize a lawsuit however you like. Courts and juries decide what actually has merit, and how much merit it has finacially speaking. There is no way around this. More importantly, his strategy is not really dependent upon the cases he brings being “non-frivolous”. The point was to bankrupt them. He could do that will 1000 bullshit cases, or a few legitimate ones that award millions in damages.
The point I raised has nothing to do with a constitutional right. I am talking about the practical reality of running a legal system in a large country. Not every case can go to trial. Not every tort should result in a jury trial. The reality is that a functional system relies somewhat on people on both sides being reasonable and/or self-serving enough to compromise. To analogize this, imagine some billionaire paid for lawyers to contest every traffic ticket issued in a given small town. The system would break down. The system only works because only a small percentage of people have the free time and inclination to contest tickets, and because the state is generally conscientious about giving them out honestly.
No, generally there are not penalties for wasting the courts time. Even when there are, they are financial, which is not a significant disincentive to a billionaire acting as a proxy. Loser pays is not that common, and anti-SLAPP laws usually wouldn’t apply.
This is also ignoring the fact that proving something was frivolous or filed in bad faith is hard to do. This is why insurance companies just settle even when they know they are being extorted. Most don’t even bother with small claims as proving bad faith is costly, and the plaintiffs often have no real assets to recover. Further, in this specific case, Thiel would have the benefit as a proxy of not being directly liable for any penalties.
This is generally not true. If you have a slam dunk case, you can find someone to bankroll your suit indirectly, or a lawyer who would work on contingency.
The big piece of evidence missing to your theory that Hogan was acting against his own interest is whether or not Hogan was sufficiently informed of the stakes of these decisions. If he knew and understood them, then Thiel’s involvement is irrelevant. If he did know and understand them, then the lawyer acted unethically. I’m not sure how you can disagree with any of that.
I think you’re quibbling for no other reason that to disagree with me.
Who are these “people” who cannot distinguish between an aging celebrity having sex and a sitting mayor smoking crack?
Christ, enough with the quibbling. You just got done lecturing me about how the Hogan case wasn’t a slam dunk. I have tried several times to explain that my use of the word “meritorious” does not mean “final judgment for the plaintiff,” it means something more like “relating to a reasonable claim that deserves to be heard.” If someone has a reasonable claim that deserves to be heard on the merits, the question of who is paying the legal bills is simply not relevant to the facts of the case.
You’re literally advocating that the judicial system adopt an ad hominem approach to civil suits. “Whether or not the facts are on the plaintiff’s side, someone we don’t care for is in league with the plaintiff, so as long as that person is involved, the facts don’t matter.”
Show me where a billionaire bankrolled 1,000 bullshit cases and I’ll agree that it is an abuse of the judicial system that must be stopped. Bankrolling a reasonable case – especially one in which the jury found that the plaintiff was wronged – is a terrible example of power being abused. It’s like using an example of a car crash where an airbag saved someone’s life to argue that car companies don’t do enough to protect drivers.
Sounds like you just don’t want journalists to be subject to lawsuits.
You are missing the point. The issue isn’t whether Hogan understood what he was presumably agreeing to. You are the one who brought up fiduciary duty. The original point I raised was that acting as he did was NOT in his financial interest given the facts at the time. That is both mine, and the professional opinion of multiple lawyers looking at the case at the time. Yes, it still worked out for him, but that is somewhat luck. Would Hogan or his lawyer have taken that gamble if they were not being bankrolled? Almost certainly not. That is a problem.
No, I am honestly not. I am correcting your misimpression that most cases are demonstrably frivolous or meritorious beforehand. That is just not the case.
Again, you missed the point. The issue is where privacy for public figures begins and ends. It’s not clear that being taped without your knowledge, and being embarrassed by what was caught on tape is sufficient for a privacy claim against a news organization who reports that fact. Just as Hogan could argue that posting the actual video was over the top, so could Berry and Ford and Weiner. Surely just reporting the incident gives the public all the necessary information. The pictures/video add very little. Of course Berry has less of a claim since the FBI (iirc) was taping him, but the general point obtains.
Again, you don’t get it. The only arbiter of whose case deserves to be heard is a court. That process of determination costs money for both sides. Our opinions on the matter are irrelevant. The original point was that Thiel’s blueprint works no matter the success or failure of the claims. That’s why it’s problematic.
It is clearly relevant because it clearly alters the calculus on both sides. Let’s take a more clear cut example. Did OJ’s ability to hire a dream team of lawyers affect the outcome of the case? Surely the “facts” of the case didn’t change, right? Now can you seriously make the argument that one side having limitless resources isn’t relevant at all?
Not at all. I don’t know how you can come away with that impression. I do think however that all parties with a financial stake in the outcome should be known to both sides at the very least, and that said people should be subject to any penalties for bringing claims in bad faith.
This already happens in other arenas like affirmative action and abortion. It not thousands of cases, but rich people regularly bankroll what I think are bullshit cases. Obviously, opinions will vary on what is and isn’t a bullshit case.
Either way, you are, again, missing the big picture. We have no idea how often this happens because people like Thiel could theoretically operate in the shadows forever. We can surmise that he has likely backed at least 4 lawsuits against Gawker. How many is too many in your opinion?
Again, this is an ex post facto determination. Your rationalization is made all the more
Yes, in many cases they should not be. Let’s just use a hypothetical. Do you really think any small time news organization would be willing to incur Thiel’s wrath by reporting negatively about him or his personal life going forward? Do you think Thiel could theoretically destroy any small business through lawsuits if he choose to?
It’s bad enough that many billionaires just buy news organizations that they don’t want criticizing them (eg. Sheldon Adelson and the LVRJ), but now every relatively small news organization faces a demonstrable existential threat from anyone with immense resources who wants to litigate them into financial ruin. That’s bad. Now you can argue that Gawker brought this on themselves, and that they are the real bad guys, but there is no guarantee this weapon will be used only against the bad guys. Mother Jones already got a small taste of this. Do you really think they will be the last?
Because there are indications that Thiel’s strategy didn’t concern itself with whether the lawsuits were meritorious. And because we don’t actually know whether the lawsuits are meritorious, since we don’t know how many lawsuits Thiel backed. We only know about this one because it was big enough news that someone broke the story.
Also, be clear with your framing of the issue. I am not suggesting that Thiel’s ability to hire lawyers to advocate for some third party should be curtailed by law. So, yes, he should be able to hire as many lawyers as he wants. Not in dispute.
The issue is: “Since rich people can hire as many lawyers as they want, will our legal system function properly if a billionaire with a vendetta decides to silence a publisher he disagrees with?”
So far, my interpretation of the consensus is somewhere between “maybe” and “not really”.
I think it is the entire point. You and the multiple lawyers you reference have come to the conclusion that Hogan was possibly being hookwinked into bad trial strategies based primarily on the implication that the lawyers were serving Thiel’s interests, and not Hogan’s. The question of whether Hogan was aware of the risks, and agreed to the strategies in spite of them, is the ENTIRE question, as opposed to “missing the point.”
Nonsense. I can make up my own mind on whether a case seems reasonable without having a judge and jury hear the entire matter and come to a definitive conclusion. For example, if a Ford Pinto blows up and burns a toddler, the plaintiff has a good case against Ford. If a drunk driver plows into a group of nuns and the drunk driver decides to sue God, that is a stupid case. If a public figure sues a media outlet for invading his privacy, I can’t come to a conclusive opinion on whether or not he should win the case, but it seems pretty reasonable that a court should hear it.
Are you of the opinion that you can’t form any opinion on any of those three matters until a judge and jury hear all the facts and come to a decision? Because that’s what you seem to be repeating over and over.
I’m not the one arguing that a court shouldn’t hear certain cases based on how much the lawyers are billing and to whom. Yes, good lawyers obviously make a difference. But I’m not prepared to stop people from accessing the court system for reasonable claims based on them having too much money, whatever that is.
As I said before, I think it may be reasonable for the judge to know if the lawsuit is being funded by a third party, but not the jury. And I’ve said many, many, many times that cases brought in bad faith should be subject to some kind of sanction (as in cases that have no hope of winning on the merits and are brought for primarily reasons of harassment) and you’ve consistently argued that I’m unreasonable in thinking that, because lawyers never get disbarred or whatnot.
“Surmise?” What is the basis for this surmision? Cite, please.
… awesome? Some of your lines keep droppping out.
I think a small news organization should weigh whether the “news” they present has value and is not grossly defamatory. I think the vast majority of news outlets do this, and if a story is purely prurient and very likely defamatory, a responsible news organization would spike the story. As they should. As Gawker clearly should have done with the Hogan story.
To the extent that people, whether rich or poor, sue media organizations for malfeasance, my tolerance of the cases is based on whether or not there was malfeasance, not according to the size of the pocketbooks of those alleging the malfeasance.
If there is no malfeasance, and the case is shown to be barely anything more than harassment via courts, then I think that whomever is suing ought to at least pay the legal bills of the defendants. I’d also be happy with stronger sanctions for more egregious violations.
Again, wrong. The point is that the riskiness of Hogan’s strategy is mitigated by the fact he was not paying for the lawsuit. No one was aware of that at the time, thus making his strategy sub optimal given what was known. No one is saying Hogan was tricked or that he didn’t know the risks. That may in fact be the case, but there is no evidence either way. All people have said is that his behavior given what we knew then makes little sense.
You can, but your opinion would be entirely worthless, and would have no bearing on any case being brought to court. How you keep missing this very basic point is beyond me.
It may seem that way because you aren’t comprehending what is being written. I can have any opinion I want on whether a case seems credible. Those opinions, mine, yours, Donald Trump’s, whomever’s, don’t mean both sides don’t need to hire lawyers to deal with the case.
Additionally, if the court or a jury disagrees with any of the above, they are “right” and I am “wrong”. It’s that simple. Just like I can thing something is unconstitutional even if the SC says it isn’t. My opinion doesn’t factor into that determination. Why do you find this so hard to grasp?
Neither am I. Can you point out where you think I argued that?
We are not talking about people with standing accessing the court system. We are talking about outside parties using the court system via proxies to address a personal grievance. That is an entirely different matter. Had Thiel chosen to sue Gawker for outing him, he would be on completely firm ground.
No, I have argued your incoherent response is muddling multiple issues. First, claims made in bad faith are hard (and costly) to prove. There are typically laws against such claims, but they are used sparingly because of that fact. Doubly so because most people don’t have assets worth going after. This is part of the reason malpractice insurance is so expensive. Settling most cases is an economic reality that often has little to do with a case’s merits (at least beyond the settlement amount).
Second, disbarring a lawyer is really, really hard, and it’s not a remedy for what is going on here. It’s certainly not going to happen because a lawyer convinced you to settle as you speculated it might.
Third, none of these address the problem here. As I noted before, laws against claims made in bad faith would not prevent an outside person from funding as many of them as s/he wants.
See here:
There is also the fact that attorney Charles Harder, who represents Hogan, has brought two other lawsuits against Gawker this year.
Great idea in theory. Should Mother Jones not written the story that begat lawsuits that nearly put them out of business?
Again, defending yourself against lawsuits is not free. Why do you not get this very basic point? You can argue it’s only reckless companies that get sued, but that is obviously not the case.
But in real life, such a thing is really hard to prove. Your commentary is like saying only guilty people should be arrested without realizing that such a thing is is impossible to attain, and is less likely to be attained without strong disincentives in place that prevent people from gaming the system.
Either way, since you cannot seem to grasp what I am saying, maybe you will understand when you hear someone else talking about the problem here:
Marshall expounds here:
Another critic here: